Bressler Risk Blog

More on AI use and privilege from David Kluft: “Can a pro se party’s AI use be protected by the work product doctrine?” —

• “In a CO employment dispute, the parties got into a discovery dispute over the use of AI. The defendant wanted the pro se plaintiff to reveal what kind of AI he was using to review confidential material. The plaintiff claimed this information was protected by the work product doctrine.”
• “The Court distinguished U.S. v Heppner (SDNY), in which a represented criminal defendant used AI on his own and not at the behest of counsel, and therefore the work product protection did not apply to his chatlogs.”
• “By contrast, the Court found that in this case, there was no counsel on whose behest AI would be used so there was no separation between client and counsel, and in addition the civil rules afforded broader work product protection to parties than the criminal rules.”
• “Therefore, ‘some’ work product protection did extend to the pro se party’s use of an AI platform. However, the mere identity of the AI platform being used is not work product because it does not reveal the party’s mental impressions, case strategy and legal resource allocation.”
• “The Court issued a protective order restricting the use of AI to platforms that did not disclose confidential information to third parties and that allowed information to be deleted.”
• Decision: here.

“Washington court blocks insurer from using assigned malpractice claims against defense counsel” —

• “A Washington appeals court just told liability insurers they cannot sue their own retained defense counsel using malpractice claims assigned from their insured.”
• “The April 6 decision from the Washington Court of Appeals draws a firm line around a recovery strategy that some insurers have turned to when defense counsel’s alleged negligence drives up the cost of a claim. The ruling will likely prompt liability insurers operating in Washington to rethink how they manage risk when the lawyers they hire to defend their policyholders perform poorly.”
• “The dispute traces back to a personal injury at Vertical World, an indoor climbing gym. Michael Vandivere fell and was injured, allegedly because of a defective auto belay device manufactured by C3 Manufacturing LLC. Vandivere sued, and C3 turned to its primary liability insurer, Great American E & S Insurance Company, for a defense. Great American agreed to defend C3 but did so under a full reservation of rights – meaning it preserved the option to later deny coverage depending on how the facts developed.”
• “Great American retained attorney J. Scott Wood to handle C3’s defense. Wood initially practiced at Foley & Mansfield PLLP but moved to Sinars Slowikowski Tomasaka LLC in early 2022, and C3 retained Sinars as its new defense firm. At Sinars, Wood worked with attorney Christopher Furman on the Vandivere lawsuit.”
• “That is where things went sideways. Between April 2022 and April 2023, Furman visited two Vertical World gym locations – including the one where Vandivere was hurt – on what the complaint described as dozens of occasions. Neither Furman nor Wood updated C3’s discovery responses to disclose those visits, even though discovery obligations required it.”
• “Meanwhile, C3’s excess umbrella carrier, Houston Casualty Company, notified C3 that it was rescinding its $4 million policy, alleging that C3 had made material misrepresentations on its insurance application. Wood, who had already disclosed the existence of the Houston Casualty coverage to Vandivere, did not update C3’s discovery responses to reflect the rescission.”
• “Then came a conflict of interest. In April 2023, Wood left Sinars and joined Gordon Rees Scully Mansukhani LLP – the same firm that was representing Houston Casualty in its coverage dispute against C3. For about two weeks, Wood continued to represent C3 while his new firm simultaneously represented Houston Casualty on the opposing side. When the conflict was disclosed in May 2023, Wood and Gordon Rees withdrew from representing C3, leaving Great American scrambling to find new defense counsel just weeks before trial.”
• “New counsel quickly disclosed what prior counsel had not. The parties learned about Houston Casualty’s attempted policy rescission, and Vertical World informed Vandivere that Furman had visited its facilities more than two dozen times – all without disclosure. Vandivere moved for sanctions, and the trial court obliged, awarding monetary penalties and signaling that it would instruct the jury to draw a negative inference from C3’s discovery failures. Vandivere then took the position that the misconduct effectively obligated Great American to cover any judgment in full, regardless of its policy limit.”
• “Facing that pressure, Great American settled the case for $5 million – well above its $1 million primary policy limit – in addition to court-ordered sanctions against C3 and Sinars. As part of the settlement arrangement with C3, the insured assigned all of its legal malpractice and related claims against the defense lawyers and their firms to Great American.”
• “Great American then sued the defense attorneys and firms, asserting malpractice and breach of fiduciary duty both on its own behalf and as the holder of C3’s assigned claims. The superior court dismissed Great American’s direct claims but allowed the assigned claims to proceed.”
• “The Court of Appeals reversed on the assigned claims. The core of the ruling is that Washington public policy does not permit an insured to hand over its legal malpractice claims against defense counsel to the liability insurer that retained that counsel, at least not where there is a potential conflict between insurer and insured. A reservation of rights defense, the court reasoned, inherently creates that potential for conflict.”

“When should counsels disclose judges’ conflicts? Responsibilities addressed in new ABA ethics opinion” —

• “If a lawyer knows or should know information in a court proceeding that would likely warrant a judicial disqualification, they have an obligation to disclose it, even if the judge doesn’t, according to an ethics opinion released Wednesday by the ABA.”
• “Caselaw holds that lawyers have an overarching duty of candor to the courts, according to Formal Opinion 522, published April 8 by the ABA’s Standing Committee on Ethics and Professional Responsibility.”
• “‘Judges are expected to raise recusal questions themselves,’ according to the opinion, citing Rule 2.11 of the ABA Model Code of Judicial Conduct.”
• “However, if the judge fails to do so, the obligation extends to attorneys under Model Rule 8.4(d) of the ABA Model Rules of Professional Conduct, which prohibits attorneys from engaging in conduct ‘prejudicial to the administration of justice.'”
• “However, an attorney’s obligations to disclose information that might require a judge to recuse themselves is tempered by the attorney’s duty of confidentiality under Model Rule 1.6, which prohibits revealing client information without their informed consent.”
• “The formal opinion lists four illustrations, which focus on prior employment connections, campaign contributions, a spouse’s law firm involvement and a counsel’s business relationship with a judge’s family member.”
• Full opinion: here.

“Outside Counsel Guidelines: Power, Ideology, And The Evolution Of The Corporate Bar” —

• “Outside Counsel Guidelines (‘OCGs’), terms of the lawyer–client relationship imposed by corporations, are a significant development in the practice of law by large corporate law firms (‘BigLaw’). Among the most controversial OCGs are those that expand on law firms’ fiduciary obligations, thereby restricting their future clientele. The organized bar maintains that rules of professional conduct should restrict lawyers’ acquiescence to these OCGs because they limit clients’ access to legal services and undermine lawyers’ independence without advancing corporate clients’ legitimate interests.”
• “This Article shows why the bar’s effort has (very recently) deservedly failed: corporate clients have a legitimate interest in demanding greater loyalty than the rules provide as well as in expanding on other fiduciary protections, and the bar’s avowed concerns about clients’ choice of counsel and lawyers’ autonomy are not significantly implicated in this context.”
• “At the same time, the Article shows that the bar has other good cause for concern. It argues that by treating BigLaw firms as service providers rather than trusted professionals, OCGs contribute to corporate lawyers’ loss of influence and standing as wise counselors and to the corresponding decline of their traditional commitment to promoting the public good through their legal work. This analysis contradicts the conventional understanding of how corporate law practice is evolving. The traditional pendulum account states that power and standing swing internally within the corporate hemisphere, historically from general counsel to BigLaw and now back to in-house counsel. Our revisionist account shows that power has shifted from the corporate bar to corporate clients.”
• “The account we develop explains for the first time seemingly contradictory contemporary practice realities in the corporate hemisphere of the legal profession that others have struggled to understand. If BigLaw firms have lost power, how have they remained so profitable? And if they have not lost power, why have many firms capitulated to the Trump Administration?”
• “We show that in response to their loss of power in the twenty-first century, BigLaw firms have restructured. This restructuring has successfully mitigated BigLaw’s loss of power and allowed the firms to remain profitable. But law firms’ restructuring further weakened their commitment to practicing corporate law as a public calling and promoting the public spirit of the law and the rule of law. This helps explain why, at the start of the second Trump Administration, highly profitable law firms declined to oppose Executive Orders targeting the legal profession.”
• Full paper: here.

“Law firm Jones Day says hackers accessed client files” —

• “Jones Day, a leading U.S. law firm, said on Monday that it suffered a data breach after hackers posted client materials online.”
• “Jones Day, which represented President ​Donald Trump in his 2016 and 2020 election campaigns, ‘experienced a cyber ‘phishing’ incident in which ‌an unauthorized third party accessed a limited number of dated files for 10 clients,’ a firm spokesperson said in a statement.”
• “The hackers claimed to have targeted Greg Castanias, who leads the Jones Day ​team handling cases before the U.S. Court of Appeals for the Federal Circuit, according to a screenshot they posted of purported negotiations between them and two members of the firm’s information security and technology staff.”
• “The Silent Ransom Group has been targeting law firms since 2023 ‘likely due to the highly sensitive ‌nature ⁠of legal industry data,’ the FBI said in a notice it circulated last year.”
• ‘Jones Day, with 2,400 lawyers, was founded in Ohio and is known for defending large corporations. The firm represented Trump in his first two presidential campaigns as the Republican nominee, and several of its attorneys landed senior ​positions at the White House ​and Justice Department during ⁠Trump’s first and second terms.”
• “Jones Day said in 2021 that it was among companies affected by the hack of a file-transfer program by a group ​known as Clop. Law firms, which frequently possess confidential client data relating to ​corporate deals ⁠and litigation, have been increasingly targeted by hackers and other cybercriminals.”

“Arizona Law Firm Severs Back Office for $125 Million Investment” —

• “Rafi Law Group is separating back-office services from its legal operation to receive $125 million from an outside investor, the personal injury firm announced Monday.”
• “Rafi’s move to create a management services organization, which separates functions such as accounting and marketing from legal offerings, is a creative approach by firms to gain outside investment while bypassing state requirements that lawyers own firms. After catching on in physician-owned medical practices, the strategy is gaining traction in the legal industry though remains rare.”
• “‘MSOs keep that separation,’ Rafi said. ‘Attorneys maintain their independence so that they can make those decisions that are best for the clients.'”
• “Rimon PC [California] in 2019 became one of the first law firms to sell its back office functions, now known as Briefly, to private equity firm AlpineX. McDermott Will & Schulte said in November it is in preliminary discussions about selling a stake in its law firm to outside investors, and Quinn Emanuel founder John Quinn said in an interview last month that he envisions MSOs becoming more common.”
• “Some MSOs are entities spun off from law firms so that outside investors can take direct stakes, while others are created to offer services directly to firms. Texas-based Certum Group, which specializes in litigation finance and related insurance offerings, acquired an MSO in October targeting mass-tort firms and has already partnered with several of them.”
• “Mass tort and personal injury firms have been described ‘ground zero’ for MSOs.”
• “MSOs offer a different route to outside capital than Arizona’s alternative business structures. Though the firm is based in the state, Rafi said the MSO better suited the firm’s needs since there are guardrails that prevent the intertwining of outside capital into the law firm.”
• “Alternative structures have caught the attention of legislators. California enacted a law in January that blocks alternative law firms from operating in the state through arrangements with local firms. Illinois introduced a similar bill in February, which also bans firms from sharing fees with firms operated by non-lawyers and also includes MSOs.”
• “Rafi said he hired attorneys from Greenberg Traurig to help navigate the MSO through ethics guidelines and state regulations. He said he’ll continue to keep a close eye on legislation.”

“The Back-Office Back Door to Nonlawyer Investment in Law Firms” —

• “Managed service organizations running the back office of many medical and dental practices have already gained prominence as private equity’s structure of choice for entering the health care sector, according to lawyers brokering these so-called MSO deals. Now, investors are eyeing similar opportunities in the legal industry.”
• “Briefly, backed with private equity capital from AlpineX, has grown by acquiring the back-office assets and personnel from distributed firms OGC, Scale and Rimon, among others, and bundling them into a single facility that now operates under the name Briefly. Federate seeks a similar trajectory.”
• “But unlike the private equity-backed Briefly, Federate co-founder T.J. Henry, a former chief legal and growth officer at Rimon, isn’t accepting private equity capital for his newly created legal MSO venture.”
• “Even though such an arrangement wouldn’t violate Rule 5.4 of the ABA’s professional conduct code, Henry said he wants to avoid any ‘adversarial relationships’ between lawyers at Federate’s firms and investors seeking to profit off the back office. Instead, Henry said he’s approaching various professionals in the legal industry, lawyers and nonlawyers alike, whose incentives are aligned with his.”
  ‘What we’ve learned in prior situations is that … investments from private equity come with complications because you’re beholden to fund timelines and the idea that you need to exit,’ Henry said.”
• “Charles Rutstein, CEO of Briefly sponsor AlpineX, rejected the notion that private equity’s business model was misaligned with law firms and said fund timelines aren’t as constricting as many think.”
• “Rutstein said Briefly is still in an initial hold period with AlpineX and it’s too early to say if or when AlpineX will sell, adding, ‘there’s no urgency’ on AlpineX’s part.”
• “‘Businesses bought by private equity sponsors grow quickly with investment from new owners,’ he said, noting that private equity has already permeated legal services through tech vendors like Intapp. ‘Private equity brings capital, talent and experience to dramatically improve experience for attorneys that we serve,’ he said.”
  Rutstein added that, in the example of Briefly, the upshot is a sophisticated back-office operation for small firms that couldn’t provide one on their own.”
• “The management and fee agreements between MSOs and the practices they serve are highly regulated so as to discourage unqualified management of clinical practices and the funneling of capital away from patient care, according to lawyers involved in MSO transactions.”
• “MSOs have become a common vehicle for private equity firms to profit from clinical practices without running afoul of regulations concerning nonphysician ownership, said Ericka Adler, health care group manager at Ohio-based midsize firm Roetzel & Andress, but they are careful not to structure the fee as a de facto fee-sharing agreement.”
• “Rutstein said Briefly and AlpineX retained legal ethics counsel to structure their agreements with firms, going to pains to refrain from interfering in the professional independence of the lawyers they serve.”
• “Briefly’s fees are structured on a per-attorney, per-month basis to decouple it from attorney professional independence, Rutstein said, adding that ‘it makes no difference for us to take a case to trial or settle it. We don’t make a dollar less in that scenario.'”
• “Briefly’s contracts provide it with the discretion to raise prices, but fee increases are ‘not tied to [firm] financials in any kind of direct way,’ but to inflation and Briefly’s own cost of services. This way, there’s no arguing that there’s fee-sharing with the law firm.”
• “Rutstein said he didn’t know whether Briefly’s service agreements stipulate the division between legal and nonlegal functions, as D’Agostini said is common in the medical field. But Rutstein said he wouldn’t have a problem signing such a contract. Rutstein said AlpineX and Briefly refrain from getting involved in the business operations of the law firms they serve, such as brokering a merger between any of the firms.”
• “While some view nonlawyer ownership of law firms as a welcome influx of capital and business acumen to a stodgy business model resistant to innovation, others see a troubling encroachment on the independence of lawyers by investors with no fiduciary duties to clients.”
• “From the elevation of nonlawyers to C-level positions to litigating cases with financial support from nonlawyer investors to Arizona and Utah’s experimentation with nonlawyer investment and ownership, there are many ways for nonlawyer professionals to control and profit from the provision of legal services.”
• “Eric Pacifici, founding partner of SMB Law Group, said the infusion of capital and business know-how offered by private equity should be welcomed by the industry.”
• Attorney Stephen Younger, a former president of the New York State Bar Association, said nonlawyer profit sharing in Arizona and Utah has failed to deliver on the promise to close the access-to-justice gap and has instead funneled capital out of the practice of law to private equity and other nonlawyer investors.”
• “There are also potential conflicts of interest if a lawyer cross-sells services of a nonlawyer partner or a nonlawyer investor pushes a trial lawyer to compromise his or her duty of care for a paycheck, Younger said.”
• ‘If you plant a (venture capital) person at the table, there’s greater risk of them saying, ‘Just settle the case’ as opposed to saying, ‘She’ll do better next year because we’ll have a trial date next year,’’ Younger said.”
• ‘The legal profession is governed by professionals,’ Younger continued. ‘They’ve gone to law school for three years. You can’t just ignore that and say we’re going to abolish licensing of lawyers. We need to have licensing to protect consumers. I’m all for tech companies, but … I don’t think we should be turning keys to the profession over to tech companies.'”

“Legal Department Infighting Breaks Out Between AI Doubters and Devotees” —

• “AI is causing infighting on legal teams, as lawyers with deep-seated distrust of the technology clash with those eager to leverage it for greater speed and efficiency. That was one of the findings of a new survey of 252 legal professionals on legal department AI use. The report, released by the legal staffing firm Paragon Legal, found that while AI tools have become fixtures in legal departments, skepticism about their reliability runs deep.
• “Data for the survey was collected in October 2025.”
• “According to the survey, 67% of legal professionals said they have had to correct AI-generated work, and only 21% said they placed ‘high trust’ in AI-generated legal work, while 42% said they had little to no trust at all.”
• “There is little appetite among those surveyed for delegating high-stakes tasks to AI. Fifty-eight percent of those surveyed said they would not feel comfortable submitting an AI-drafted document to a regulator or court. The findings suggest that even as legal teams integrate AI into their workflows, attorneys remain reluctant to cede final judgment to the technology because of a significant trust gap.”
• “The survey arrives as the legal industry continues to grapple with where to draw the line on AI delegation. OpenAI earlier this year moved to halt the provision of direct legal advice through its products, a signal that even the most prominent AI developers are still working through the professional and ethical boundaries of the technology in legal contexts.”
• “‘For in-house leaders, this shift signals a need for balance, not retreat. Legal departments should continue testing AI for routine, low-risk work while reinforcing the human oversight that protects quality, compliance, and reputation. The goal isn’t to eliminate human input; it’s to deploy technology in ways that make your people more effective,’ Paragon wrote in its analysis accompanying the survey data.”
• “The survey identified several factors dampening enthusiasm. When asked what would most increase their trust in AI systems, 41% of respondents pointed to mandatory human sign-off requirements, while 20% cited explainable decision-making and 17% called for built-in compliance guardrails.”
• “Notably, 15% said nothing would make them trust AI regardless of safeguards, a contingent that legal technology vendors may find difficult to win over.”
• “The top concerns of automating legal work included hallucinations and lack of accuracy, ethical concerns, liability exposure and the possibility of data breaches.”
• “Adoption is also generating friction internally. Nearly half of respondents—47%—said AI automation had sparked conflict within their legal teams, a finding that points to unresolved questions about roles, accountability and quality control as departments scale up their use of the technology.”
• “Paragon also asked respondents how AI has made their work better, and 69% responded that it improved the speed of their work, while 39% said it lowered costs and 31% reported it increased consistency.”
• “Sixty-eight percent of those surveyed said their departments plan to automate new functions in 2026, with 46% saying they expected their teams’ use of AI to ‘increase moderately.’ Half of respondents said they felt pressured to appear more ‘tech forward’ by experimenting with AI, while 67% reported that they’ve already experimented with AI to write or improve internal policies.”

David Kluft asks: “Can I get an advisory ruling from the court on whether hiring a new associate will create a conflict of interest?” —

• “In a MT putative class action case, the lead plaintiff’s counsel wanted to hire a lateral partner who, while at another firm, had represented one of the defendants in the same case.”
• “Plaintiff’s counsel submitted a motion to the court seeking assurance that the hire would not create a disqualifying conflict of interest.”
• “The defendant opposed on the grounds that there was no real justiciable controversy, since nobody had been hired yet. The court agreed, nothing that the ‘the advisory opinion rule is the oldest and most consistent threat in the federal law of justiciability.’ Therefore, ‘it would not be appropriate for the Court to offer its views on potential conflicts that could arise’ from the hire.”
• “However, the court warned that the lateral partner already had access to sensitive information, that all the lawyers had obligations under Rule 1.9 (former client conflict of interest), and that the court expects ‘strict compliance’ with their ethical obligations. In other words: maybe don’t make the hire until the case is over.”
• Details: here.

“Conflict Lawsuits Against Am Law 200 Firms Emerge in Law.com Radar Roundup” —

• “A raft of lawsuits targeted Am Law 200 firms in March, with several cases filed by former clients leveling conflict claims… Law.com Radar surfaced 36 new lawsuits naming Am Law 200 firms as defendants in March, most of them alleging legal malpractice, with a smattering of other types of cases bringing some remarkable allegations. The platform also detected 18 new lawsuits filed by Big Law firms as plaintiffs, the majority of which allege unpaid legal fees.”
• “Among the conflict cases, Venable and firm partner Christopher Moran were sued in a $3.5 million complaint on March 10 in state court in Los Angeles. Plaintiffs Ryan Wert and his business Brightstar Partners Insurance Services allege that when Moran drafted business agreements for Wert and three other potential business associates related to tax and insurance services, Moran told Wert that his interests were protected and that no conflict of interest existed. The suit, brought by Dyer Law Firm, claims that, after a dispute arose among Wert and the others, Wert discovered that the others’ interests had been prioritized over his and that the contracts contained a provision that was illegal. Neither Moran nor Venable responded to requests for comment.”
• “Dickinson Wright and partner Jeffrey Kass were hit with a conflicts lawsuit brought by Empire Auto Protect, alleging that Kass simultaneously represented both Empire and CarShield, which are competing automotive repair plan companies, without Empire’s consent. The suit, filed by Axenfeld Law Group on March 25 in New Jersey federal court, claims that the law firm then used Empire’s confidential information to file a trademark infringement suit against Empire on CarShield’s behalf. Neither Dickinson Wright nor Kass responded to a request for comment.”
• “Katten Muchin Rosenman and partners Charles Harris, Tye Klooster and Louis Laski face a conflicts suit that alleges the firm’s joint tax and estate planning representation of plaintiff Susan Glikin and her former husband resulted in the improper transfer of ‘tens of millions of dollars’ in marital property to a trust that gave her ex-husband effective control. The case, brought by law firm Bruck McInerney, was filed in Illinois state court on March 13. Neither the firm nor the partners responded to a request for comment.”
• “Foley Hoag and partner Kristyn DeFilipp were sued in a case brought by Torrey Ah-Tye, who alleges that DeFilipp represented her and Meenta Inc., a lab equipment company, in defending a wage lawsuit against the company that settled. The suit claims that DeFilipp failed to inform Ah-Tye that one of Foley Hoag’s lawyers was employed by or was an officer of the company at the same time. The case, brought by Phillips, Silver, Talman, Aframe & Sinrich in Massachusetts state court on March 19, claims that as a ‘mere employee’ of Meenta, Ah-Tye should have been told that she needed independent counsel in defending the wage case. A Foley Hoag spokesperson responded to a request for comment from DeFilipp: ‘Foley Hoag has never represented this individual and believes these claims are entirely without merit.'”

“Morgan Lewis Dodges DQ in Meta Smart Glasses IP Suit” —

• “Solos primarily argues that Morgan Lewis’s prior representation of Kopin is ‘substantially related’ to this litigation and creates a conflict of interest that requires disqualification under Mass. R. Prof. C. 1.9 because Morgan Lewis owes confidentiality obligations to Solos as Solos was a business division within Kopin, Morgan Lewis’s client, before the spin-off.”
• “Morgan Lewis counters that Solos has never been its client and that, in any case, there is no substantial relationship between Morgan Lewis’s corporate work on the 2019 transactions and the current patent-infringement lawsuit.”
• “Here, Morgan Lewis’s representation of Kopin during the 2019 transactions does not require Morgan Lewis’s disqualification in this litigation under Mass. R. Prof. C. 1.9, for two reasons. First, Morgan Lewis’s counselling of Kopin did not create an attorney-client relationship between Morgan Lewis and Solos because (1) ‘[t]he assignment of a patent does not transfer an attorney client relationship,’ …  and (2) ‘courts have held that ‘representation adverse to a former client’s affiliate is proper unless there is a high degree of operational commonality and financial dependence between the affiliated entities,’’ Evolutionary Intel., Inc. v. Facebook, Inc., No. 12-cv-00784, 2013 WL 12140485, at *14 (E.D. Tex. July 3, 2013) (citing GSI Com. Sols., Inc. v. BabyCenter, L.L.C., 618 F.3d 204, 210–11 (2d Cir. 2010)).”
• “Neither Morgan Lewis’s representation of Kopin before the spin-off of Solos—a spin-off during which the newly formed Solos was represented by separate counsel—nor Kopin’s current minority ownership interest in Solos transforms Solos into Morgan Lewis’s client for purposes of Mass. R. Prof. C. 1.9”
• “Second, even if an attorney-client relationship existed between Morgan Lewis and Solos, there is no substantial relationship between any former representation by Morgan Lewis of Solos and its current representation of Oakley, Inc., Luxottica of America, Inc., and EssilorLuxottica USA, Inc. Morgan Lewis’s work on discrete corporate-law issues during the 2019 transactions appears entirely unrelated to the issues in the instant patent-infringement dispute.”

“Tucker v. United States — No Per Se Conflict from Counsel’s Unrelated SDNY Investigation; Conflict-Free Co-Counsel Suffices for Curcio Advice” —

• “In Tucker v. United States (2d Cir. Apr. 1, 2026) (summary order), the Second Circuit affirmed the Southern District of New York’s denial of (i) Scott Tucker’s motion to vacate his conviction under 28 U.S.C. § 2255 and (ii) his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). Tucker is serving a 200-month sentence following a jury trial conviction for offenses including racketeering, fraud, and money laundering.”
• “The appeal focused on two distinct questions:
  • Conflict-of-interest / Sixth Amendment: Whether Tucker’s court-appointed trial counsel, Lee Ginsberg, labored under an unwaivable per se conflict because, mid-trial, Ginsberg met with prosecutors from the same U.S. Attorney’s Office prosecuting Tucker and disclosed facts showing potential, unrelated criminal exposure. A related procedural claim asserted that the district court failed to provide “independent” counsel for the Curcio conflict-waiver inquiry.
  • Compassionate release: Whether the district court abused its discretion in denying a sentence reduction based on Tucker’s confinement conditions, rehabilitation, and need to care for his ill mother.”
• “Important procedural limitation: The Second Circuit emphasized that, due to the certificate of appealability, it had jurisdiction to consider only the narrow § 2255 question: whether an unwaivable conflict existed (not whether any waiver was knowing/voluntary).”
• “Note: This decision was issued as a summary order, which the court states has no precedential effect, though it is citable under Fed. R. App. P. 32.1 and Local Rule 32.1.1.”
• “The Second Circuit affirmed on both issues:
  • No unwaivable per se conflict: The court declined to expand the Second Circuit’s narrow per se conflict doctrine. Because Ginsberg was neither unlicensed nor implicated in Tucker’s charged crimes, and because the alleged exposure was unrelated, the asserted conflict did not qualify as per se or analogous-to-per-se.
  • Curcio counsel claim rejected: Tucker was advised by conflict-free co-counsel James Roth, who was already counsel of record and familiar with the case; the court found no requirement that the district court appoint a brand-new lawyer unfamiliar with the matter to conduct the Curcio inquiry when conflict-free counsel is already in place.
  • No abuse of discretion on compassionate release: The district court permissibly denied relief based on the 18 U.S.C. § 3553(a) factors, citing Tucker’s long fraud history, recidivism, defiance of regulators/courts, and lack of acceptance of responsibility.”
• “A. Why the conflict was not ‘per se’ or unwaivable.” Tucker’s core theory was structural: once the same prosecuting office is simultaneously investigating defense counsel, counsel may ‘curry favor’ with the government, thereby compromising loyalty. The Second Circuit did not dispute that such incentives can exist; instead it treated the question as doctrinal—whether those incentives fit within the Second Circuit’s narrow per se category or its ‘analogous’ unwaivable category.”
• “The panel also rejected the attempt to repackage the facts as an unwaivable ‘analog’ to a per se conflict under United States v. Perez. The asserted conflict lacked the kind of extreme breadth and depth that would make the representation irrational for any defendant as a matter of law.”

New York State: “Judicial Ethics Opinion 25-156” —

• “Digest: On these facts, a judge need not disqualify from a proceeding merely because counsel for a party makes many accusations against the judge, provided the judge concludes he/she can remain impartial.”
• “Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 23-70; 94-46; People v. Moreno, 70 NY2d 403 (1987).”
• “Opinion: The inquiring judge received a letter from counsel in a matter asking the judge to recuse for a long list of reasons. Several reasons appear to involve primarily legal questions, such as the propriety of the judge’s closure of the courtroom, the correctness of the judge’s discovery orders, the judge’s willingness to excuse party appearances, and whether or not a pending federal case may be relevant to the matter. Other reasons appear to involve incorrect factual assumptions.”
• For example, a purported ‘stranger’ in the closed courtroom was in fact the judge’s law clerk, and the judge flatly denies counsel’s claims that the judge has prejudged certain issues in the case or has a disqualifying personal relationship with a witness or disqualifying extra-judicial knowledge of certain property. Counsel also claims that the judge’s impartiality can be questioned because a party in the case is up for election against the judge’s spouse’s former campaign opponent. The judge believes he/she can remain fair and impartial, but asks if he/she must nonetheless disqualify under the circumstances.”
• “A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must act in a manner that promotes public confidence in the judge’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must disqualify where specifically mandated (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in other proceedings where the judge’s impartiality ‘might reasonably be questioned’ (22 NYCRR 100.3[E][1]). Where objective standards do not mandate disqualification, however, a trial judge is the sole arbiter of recusal (see People v. Moreno, 70 NY2d 403, 405 [1987]).”
• “We can only advise ‘whether the facts as presented by the judge require the judge to disqualify from the case going forward’ (Opinion 23-70). None of the specific objective disqualifying standards found in 22 NYCRR 100.3(E)(1)(a)-(f) appear to be implicated here on the facts presented. We have advised that a judge need not recuse from a proceeding ‘merely because an attorney participating therein accuses the judge of misconduct in a letter addressed to the judge, the Administrative Judge, opposing counsel, and the Commission on Judicial Conduct,’ provided the judge concludes he/she can be fair and impartial (Opinion 94-46). Nor can we see any other grounds on which this judge’s impartiality ‘might reasonably be questioned’ (22 NYCRR 100.3[E][1] [emphasis added]).”
• “Where, as here, objective standards do not mandate disqualification, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403, 405 [1987]; Opinion 23-70). Accordingly, we conclude that the inquiring judge need not disqualify from the case, provided the judge concludes he/she can be fair and impartial.”

“[Canadian] Court bars Northbridge’s law firm from acting for and against insured” —

• “A law firm cannot sue on behalf of an insured and defend against that same insured at the same time, an Alberta court has ruled. In a decision filed March 16, the Court of King’s Bench of Alberta disqualified a law firm from representing Northbridge General Insurance Corporation in three subrogated recovery actions, finding the arrangement posed a genuine risk of compromised representation for the insured.”
• “The case, Sniper Pressure Services Ltd v Northbridge General Insurance Corporation, 2026 ABKB 193, arose from two roof collapses at a commercial property in Woodlands County, Alberta – the first in March 2020, the second in January 2022. Sniper Pressure Services, which owned the land and building, was insured with Northbridge for both losses. Following the first collapse, Northbridge paid Sniper approximately $2,000,000 and launched subrogated actions against the alleged tortfeasors. Sniper, meanwhile, sued Northbridge for $650,000 it says is still owed under the policy.”
• “The issue: Northbridge had retained the same law firm to pursue the subrogated claims – filed in Sniper’s name, as is standard in subrogation — and to defend itself against Sniper’s own coverage claims. That meant the same counsel was effectively acting on Sniper’s behalf in one set of proceedings while working against Sniper in another, all arising from the same losses.”
• “Justice Kelsey L. Becker Brookes found no formal solicitor-client relationship between the firm and Sniper, which meant the ‘bright line’ rule against concurrent representation of adverse clients did not technically apply.”
• “But the court went further. Applying the ‘substantial risk’ test, the judge concluded the dual role created a real risk. In the subrogated actions, the firm would need to review Sniper’s records, identify privileged documents, and prepare Sniper’s corporate representative for questioning. In the coverage dispute, that same firm would then cross-examine Sniper’s representative, challenge their credibility, and seek admissions harmful to Sniper. The court found Sniper had been placed in an ‘untenable position’ — forced to either hand over confidential information to a firm actively opposing it, or hold back and fail to cooperate as required.”
• “‘Northbridge faces no risk; in fact, they benefit from it,’ the judge wrote. ‘The party at a disadvantage is Sniper.'”
• “The court noted the firm had accepted the dual retainer in good faith, relying on advice from a practice advisor. Still, the judge ordered the firm removed from all three subrogated actions, finding the litigation was early enough that Northbridge would not be significantly prejudiced by retaining replacement counsel.”

New York: “Judicial Ethics Opinion 25-151” —

• “Digest: On these facts, a judge whose spouse works for the employment practice of a local legal services organization must disqualify in criminal matters where a defendant is represented by that organization.”
• “Rules: 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(c); 100.3(E)(1)(e); 100.3(F); Opinions 25-167; 24-191; 22-23; 21-22(A); 97-82.”
• “Opinion: The inquiring judge presides exclusively in criminal matters, but does ‘not have a permanently assigned part with a docket of cases that are permanently assigned’ to him/her. Instead, the judge presides in calendar parts ‘on a rotating basis’ and handles whichever cases are currently in a given part while he/she is assigned there. The judge’s spouse has been hired as a staff attorney within the employment practice of a legal services organization that represents many defendants in the judge’s court. The employment attorneys primarily ‘represent[] clients in employment-related civil matters’ and do not make appearances in criminal cases. However, a ‘small percentage’ of their work involves advising criminal defense clients about the potential employment consequences of a plea offer. This process is initiated by a request from the criminal defense lawyer to their employment practice colleagues. Thereafter, as explained by the judge:”
• “‘The employment attorney may communicate [the requested] information to the client’s criminal defense attorney, or directly to the client, or to the assigned prosecutor. Either way, the employment attorney’s role is limited to providing non-criminal information about the potential civil consequences of the plea. The employment attorney does not perform any substantive legal work related to the client’s criminal case and does not advise the client about whether he/she should take the plea offer. These matters remain the province of the criminal defense attorney exclusively.'”
• “Finally, from a statistical perspective, the judge concludes that employment consequences are infrequently relevant to criminal cases in his/her court. The judge further notes that only a miniscule percentage of the organization’s criminal cases involve the employment practice, and the judge’s spouse ‘would be involved in only a tiny fraction of that already small number of cases.’ The judge emphasizes that he/she ‘would have no reason to know’ whether or not his/her spouse ‘had provided collateral-consequences information in any particular case’ during any particular calendar appearance.”
• “A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge is disqualified when his/her impartiality ‘might reasonably be questioned’ (22 NYCRR 100.3[E][1]), including where the judge knows that his/her spouse is acting as a lawyer in the proceeding (see 22 NYCRR 100.3[E][1][e]) or has an economic interest or ‘any other interest that could be substantially affected by the proceeding’ (22 NYCRR 100.3[E][1][c]).”
• “We have said that recusal is required if a judge’s attorney spouse has any involvement whatsoever in the case before the judge, even indirectly due to a supervisory role (see e.g. Opinions 25-167; 24-191; 22-23; 97-82).”
• “Still, we do not ordinarily require a judge to disqualify in all matters involving a legal services provider, merely because the judge’s spouse or first-degree relative is a staff attorney there. The usual rule is that ‘neither disclosure nor disqualification is mandated in matters involving other attorneys from the same not-for-profit legal services provider that employs the judge’s first-degree relative as an entry-level staff attorney, where the judge is satisfied his/her relative has had, and is likely to have, absolutely no involvement with the case. Thus, where the judge’s relative is employed in a division or unit that has absolutely no involvement in the kinds of matters that come before the judge’s court, the judge may preside in matters involving other attorneys from other units of the same legal services provider’ (Opinion 22-23 [citations omitted]).”
• “Due to the unusual intersection of three interrelated factors, however, we conclude the inquiring judge must disqualify whenever attorneys appear from the criminal defense practice of the legal services organization that employs the judge’s spouse. First, the employment practice is not a specialized or distinct unit that can reasonably be seen as walled off from involvement in the kinds of criminal matters that come before the judge. Nor has the legal services organization proposed to insulate the judge’s spouse from cases in the judge’s court. To the contrary, the employment practice (and also the judge’s spouse) will clearly be involved in some criminal cases, and the judge ‘would have no reason to know’ which ones. Second, employment consequences may become relevant in a criminal case at any stage of the proceedings, depending on what pleas are being negotiated, offered, or considered. Third, unlike the organization’s criminal defense lawyers, whose participation in a criminal case may be clear to everyone, including the public, from the papers or court appearances or an organizational chart, an employment attorney’s involvement in a criminal case is both unpredictable and undisclosed.”
• “The practical effect of this complex combination of factors is that each time a defendant represented by this legal services organization comes before the judge, it is an open question whether the judge’s spouse may have provided advice about employment consequences ‘to the criminal defense attorney, or directly to the client, or to the assigned prosecutor.’ At any point in the lifetime of the criminal case, employment consequences could become relevant. It seems that the judge will not know whether, in a particular case, his/her spouse has in fact provided advice on possible employment consequences; but the judge certainly knows that his/her spouse’s job responsibilities have not been limited to avoid that possibility. Requiring disqualification ‘only’ after the judge actually learns that his/her spouse was consulted does not change that underlying dynamic and would, in our view, offer too much opportunity for strategic disqualification.”

From the “This is the bread of our confliction” department, comes this catch from David Kluft: “Do I need to run a conflict check at my Passover seder?” —

• “A man attended a Passover seder and took the opportunity to seek some free legal advice from his host’s daughter, a NY lawyer.
• “Four years later, other lawyers at the NY lawyer’s firm filed suit against the man in a PA court. The man moved to disqualify, claiming that the seder conversation created an implied attorney client relationship with the firm.”
• “The firm responded in part by stating that although the guy was at the seder, there was no legal advice given and no ‘one-on-one’ conversation between them that he could have possibly seen as confidential ([Kluft’s] Note: This rings true for anyone who has ever tried to have a private conversation at a seder).”
• “Also, it turned out that since the seder, the firm had been adverse to the man in other matters and he didn’t say anything about a conflict then. The Court therefore denied the motion, holding that ‘a purported conflict of interest is not a chit to be held in a litigant’s pocket until a rainy day.'”
• Decision: here.

“Ethics, Transparency, and Lawmaking in Charleston” —

• “The previous edition of Country Roads News reported that West Virginia House of Delegates Speaker Roger Hanshaw was hired as legal counsel to represent Fundamental Data. In addition to his leadership role in the state legislature, Hanshaw is an attorney for the Charleston law firm Bowles Rice.”
• “We now know Fundamental Data wasn’t Hanshaw’s first data center client. West Virginia Watch reports that Hanshaw also represents a developer seeking approval for a facility in Mason County. Hanshaw notified the Department of Environmental Protection’s Air Quality Board on February 12 — in the middle of the 2026 legislative session — that he represents the developer of that facility.”
• “The situation has raised alarms among numerous government ethics watchdogs who say it’s a conflict of interest for Hanshaw to have clients who could profit enormously from legislation that the Speaker helped guide to enactment.”
• “Meanwhile, the state legislature is making it harder for the public to know who’s trying to influence legislation in Charleston. As Mountain State Spotlight reports, the state legislature recently enacted a law redacting certain information about political donors.”

More background on this: here.

“Williams & Connolly Sues Former Clerk For Posting Confidential Information” —

• “Williams & Connolly is suing a former law clerk in D.C. court, alleging he posted confidential client information on social media. The law firm, represented by Paul Hastings, alleges that Dante Chambers, in the last week, has posted screenshots of Williams & Connolly emails and other materials with potential client names and litigation information, in a complaint filed in Superior Court for the District of Columbia on Thursday.”
• “‘Intentionally disclosing to the public a law firm’s confidential information, including attorney-client privileged and attorney work product material, jeopardizes bedrock client protections in our legal system, violates professional ethics rules attorneys pledge to adhere to and is a blatant breach of a law firm employee’s fiduciary duties and contractual confidentiality obligations,’ the complaint reads.”
• “On or around March 17, 2026, Chambers, according to the suit, began posting what is now ‘hundreds of communications on Instagram related to Williams & Connolly, some of which contained confidential information related to the firm’s clients.'”
• “The suit further alleges that some of Chambers’ social media posts invite readers to contact the defendant for more details about the firm and that firm lawyers ‘don’t know the extent of what I have.'”
• “Among the info he allegedly shared, Williams & Connolly said he posted on March 18 a picture of confidential William & Connolly litigation materials—specifically, a picture of a physical printout of an email chain regarding client work while he was a firm employee—that contains confidential attorney work product and identifies the relevant client. A subsequent post the next day said: ‘If you want these litigation materials I prepared in fall 2024, go ahead and respond to this with your number and I’ll shoot them over to you via text sometime over the weekend next few days.'”
• “‘About 20 people currently have them, and everyone says they’re a fun read,’ he allegedly said.”
• “One March 24 Instagram post said: ‘Anyways no more Williams & Connolly info today. Just know I got more and they don’t know the extent of what I have because they never required me to get rid of anything I kept (I told you they’re BUMS). If anyone can get a message to Trump’s camp, tell them Dante said send the FBI all up in there and defend our nation from a devastating cyberattack that could cripple our countries legal and satellite infrastructure.'”
• “Williams & Connolly alleges that Chambers has made ‘numerous’ posts threatening physical violence against the firm’s partners, including a death threat posted on Thursday against a firm partner.”
• “The suit says Chambers worked at Williams & Connolly as a clerk from December 4, 2023, until Sept. 22, 2024. He previously worked for Williams & Connolly as a summer associate from July 27, 2020, to Aug. 21, 2020.”
• “According to his LinkedIn profile, Chambers graduated from Stanford Law School in 2021 and then worked as a judicial clerk to a Utah federal judge and a clerk to a judge on on the U.S. Court of Appeals for the Ninth Circuit.”